John Brennan’s Kill List

What does John Brennan consider to be a “legal framework” within which the American government can decide whom to torture or to assassinate? Brennan is President Obama’s nominee for Director of Central Intelligence; the last time his name came up for the job, after Obama won in 2008, he didn’t get it because he seemed so close to the torture program perpetrated while he was a senior official at the C.I.A. If he has greater distance now, it is only because more time has passed, not because there has been any true accounting; if anything, we have slid into an odd state of complacency about the torture in the Bush years, watching it in movies and wondering whether it worked, rather than asking who might be culpable. Brennan, instead of answering hard questions about those years, became the President’s counterterrorism adviser. That job includes many duties. One of them is crafting the President’s “kill list” (which I’ve written about in the past) and then taking it to him for final approval.

“And so think about the results,” Obama said of Brennan’s counterterrorism work when he introduced him on Monday. “More Al Qaeda leaders and commanders have been removed from the battlefield than at any time since 9/11.” “Removed” is another way of saying killed. But the more interesting word there is “battlefield.” In a speech on the drone program last April, Brennan talked about the use of targeted killings “beyond hot battlefields like Afghanistan.”

What is troubling to many Americans—what Brennan must be asked about in any confirmation hearings—is where this battlefield, this war, and this killing authority begin and end. Brennan has helped construct and justify the Administration’s claim that it can kill people, including American citizens, abroad on its own authority, even when those people are not in countries with which we are at war. His speech in April was a sort of catechism, culminating in “targeted strikes are wise.” We have done it in Pakistan and Yemen; could we do it in London or Paris? How about in New Jersey, the subject of a number of jokes at Brennan’s introduction? (Brennan is a native; Obama referred to “that unique combination of smarts and strength that he claims comes from growing up in New Jersey. “)

To judge only from Obama’s introduction, one would think that Brennan had been the bulwark against extrajudicial actions. “There’s another reason I value John so much,” Obama said. “And that is his integrity and his commitment to the values that define us as Americans. He has worked to embed our efforts in a strong legal framework. He understands we are a nation of laws. In moments of debate and decision, he asks the tough question and he insists on high and rigorous standards.” What Obama meant by this, it seems, from reporting in the Times and Washington Post, is that Brennan is deeply engrossed in designing an internal process for deciding who to kill. He wants to make sure that people in the White House think hard about it—which may feel like due process, but isn’t. He also wants to make it so that anyone can do it—any President, any counterterrorism adviser—not just ones who are as thoughtful and clever as he and Obama. In an interview with the Post, Brennan described this “disposition matrix” as a “playbook.” But codifying and keeping in tune with our laws and values are not the same thing, as much as one is mistaken for the other. One can go down a long checklist and still be breaking the law, just as one can order up a memo from the office of legal counsel and still be a torturer.

Brennan is tough and tireless and Obama clearly trusts him. Maybe he has been, as Obama suggested, an internal advocate for the rule of law; maybe he held the C.I.A. back on torture, or learned something from its experience about its moral cost: some of his admirers seem to think so. He has spoken obliquely about holding onto values while taking the gloves off. This is the problem with leaving so much of the torture program unexamined or classified: we don’t know.

Listening to Obama’s comments, one would also think that Brennan was a voice for radical openness—that the American people would be informed and get to deliberate about what was done in their name. “Time and again, he’s spoken to the American people about our counterterrorism policies because he recognizes we have a responsibility to be [as] open and transparent as possible.” Obama said. That is a strange sentiment, coming a week after the Obama Administration persuaded a court to let it keep documents about the targeted-killing program secret—including a memo that had already been reported on in the Times. The judge did so with some reluctance, referring to the “ ‘Alice in Wonderland’ nature” of the argument that the Administration could decide that “actions that seem on their face incompatible with our Constitution and laws” were legal, “while keeping the reasons for their conclusion a secret.” The Administration has also fought to keep both torture and rendition programs out of the courtroom, where they belong.

In his April speech, Brennan said that “our counterterrorism tools do not exist in a vacuum. They are stronger and more sustainable when the American people understand and support them. They are weaker and less sustainable when the American people do not.” But transparency can’t just involve a one-way speech; it involves evidence, as well as real interrogation, and the press getting to do its job. Brennan was even more qualified about public disclosure on Monday: “While the intelligence profession oftentimes demands secrecy, it is critically important that there be a full and open discourse on intelligence matters with the appropriate elected representatives of the American people”—only their representatives, only the appropriate ones? The rest of the public might find the answers useful; Brennan’s confirmation hearings might be a place to start.

Photograph by Joshua Roberts/Bloomberg/Getty.

Amy Davidson Sorkin has been a staff writer at The New Yorker since 2014.

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